March 2015: The Most Powerful Court You Have Never Heard Of

Long The disclosures by Edward Snowden about the size and scope of the National Security Agency’s surveillance activities, both in the United States and abroad, has prompted a flurry of Congressional proposals aimed at reframing the foreign intelligence- gathering process. While the thrust of these proposals is aimed at the intelligence-gathering process itself, several would also alter the operations of the federal court in Washington that provides judicial oversight of intelligence gathering and, in fact, authorized the con- troversial NSA telephone metadata collection effort disclosed by Snowden.

The court we’re talking about is the Foreign Intelligence Surveillance Court, or FISC. Described by CNN as “the most power- ful court you have never heard of,” the panel plays a significant role in the sensitive balance of foreign intelligence-gathering and civil liberties. Established in 1978 by the Foreign Intelligence Surveillance Act (FISA), the FISC hears applications from the government and decides whether to issue orders approving certain electronic surveil- lance activities for foreign intelligence purposes. Another Article III tribunal co-located in Washington, the Foreign Intelligence Surveillance Court of Review (FISCR), reviews the rulings of the FISA court. Collectively these are referred to as the FISA courts.

Unique Among Federal Courts
The FISC is unique among federal courts in its narrow jurisdiction, the selection of its judges, and the secret conduct of its day-to-day operations. The Chief Justice of the U.S. Supreme Court plays an especially engaged role in the affairs of the court. The FISC’s 11 district court judges and review court’s judges are “designated” by the Chief Justice, foregoing the usual process of presidential appoint- ment and Senate confirmation. Similarly, the Chief Justice designates the chief judge of the FISC and the FISCR. The judges of both courts serve one term of seven years and are not eligible for a second term. Because of the sensitive nature of its docket, the FISC and the Review Court operate largely in secret and in a nonadversarial fash- ion. Since its creation in 1978, the FISC has operated primarily in an ex parte manner with the government as the only party presenting arguments to the court and seeking warrants approving of electronic surveillance, physical searches, the use of a pen register or a trap- and-trace device, or the access to business ecords for foreign intelligence and international terrorism investigations.

The FISC operates out of a secure location in the federal court- house in Washington, D.C. Each week, one of the eleven district court judges that comprise the FISC is on duty in Washington. Most of the FISC’s work is handled by the duty judge with the assistance of a small group of attorneys and clerk’s office personnel who staff the court. On occasion, judges outside of the duty-week rotation handle more complex or time-consuming matters, at the direction of the Presiding Judge.

The secret and nonadversarial nature of the FISC’s proceedings and the revelation of the court’s approval of the NSA telephone meta- data collection effort have spurred several Congressional proposals that would change some of the underlying practices of the FISA courts. The most controversial proposal involves the court’s appoint- ment of a special advocate when the court is considering a novel or significant interpretation of law. Other proposals would establish en banc panels of the FISC and would alter the voting rules of the FISC in an attempt to create a higher bar for the approval of government surveillance activities.

A Special Advocate Before the FISA Courts? The appointment of a special advocate within the FISA courts has stirred the greatest controversy. The House last year passed legislation (H.R. 3361) giving the FISA courts substantial discretion to determine when to appoint an advocate, as well as decide the nature and scope of the assistance to be provided by the advocate. A broader Senate measure (S. 2685) last year would have more rigidly mandated the appointment of an advocate to make specific argu- ments involving privacy and civil liberties. The Senate bill stalled at the end of 2014, carrying the debate into 2015 with some urgency. Section 215 of the Patriot Act, which authorizes electronic foreign intelligence surveillance activities, expires on June 1.

Proponents of the appointment of a special advocate argue that the nature of a non-adversarial process prevents the FISA courts from hearing opposing viewpoints on difficult legal issues, especially ones involving privacy and civil liberty interests. The Federal Judiciary is not so sure. In a letter to Congress last year, Judge John Bates, then director of the Administrative Office of the U.S. Courts (and a for- mer FISC judge) embraced the House legislation’s approach, which imparts to the FISA court the discretionary authority to appoint an advocate, a power the court already inherently maintains. Bates criticized the Senate’s approach, which directs the FISC to appoint an advocate in certain kinds of cases. “… [W]e are concerned that insert- ing into FISA court proceedings an advocate with a statutory mandate to make specific arguments would raise substantial legal questions and impede the courts’ work without furthering the interests of privacy or civil liberties,” Bates wrote. Those questions involve separation of powers and judicial independence considerations.

FBA Panel Session on the FISA Courts
These concerns and the broader challenge of balancing national security, privacy, and civil liberties will be spotlighted at the FBA Mid-year Meeting on Saturday morning, March 28, in Arlington, Virginia, when an esteemed panel of judges, lawyers, and academics will debate the pros and cons of altering the FISA courts and their operations. Consult the FBA website for further details.